Defendant
Time Warner Cable, Inc. (“Defendant”) has moved
this court for the entry of a protective order pursuant to
Fed.R.Civ.P. 26(c). Plaintiff Andrew Fudge
(“Plaintiff”) opposes entry of a protective order
in the form proposed by Defendant. Because Defendant has not
shown that its proposed order is necessary to protect it from
annoyance, embarrassment, oppression, or undue burden or
expense, the motion is denied.

I.
Background

Eight
plaintiffs - Walter Sicotte, Maurice Peoples, Nathaniel
Brookman, James Kratka, Andrew Fudge, Kristoffer Roberts,
Kevin Majors, and Jesse Polo - (collectively, “the
Pittsfield Plaintiffs”) filed separate cases against
Defendant in the Berkshire County Superior Court for the
Commonwealth of Massachusetts, all asserting claims for
violation of Mass. Gen. Laws ch. 151, § 1B (the
Massachusetts statute governing pay for overtime work),
violation of Mass. Gen. Laws ch. 149, § 148 (the
Massachusetts Wage Act), breach of contract, and unjust
enrichment for failing to pay them for time spent working
both before and after their scheduled shifts and during their
unpaid lunch periods. Defendant removed the cases (referred
to collectively as “the Pittsfield Cases”) to
federal court based on diversity of
citizenship.[1] Defendant now moves this court for entry
of protective order preventing Plaintiff from disseminating
discovery material that he obtains from Defendant to any of
the other Pittsfield Plaintiffs absent Defendant's
agreement or a court order. Defendant seeks entry of
substantially the same protective order in each of the
Pittsfield Cases.

Specifically,
by its proposed protective order, Defendant seeks to divide
discovery material that it produces into two
categories.[2] One category would consist of discovery
material that Defendant designates as “Common
Litigation Material, ” which Defendant agrees could be
reviewed and used by counsel and the Pittsfield Plaintiffs in
any of the Pittsfield Cases (Dkt. No. 31-2 at 2). The other
category would consist of all other discovery material, which
counsel and the Pittsfield Plaintiffs could use only in the
particular Pittsfield Case (or Pittsfield Cases) in which
Defendant produces it (id. at 3). Defendant's
proposal includes a procedure whereby the Pittsfield
Plaintiff (or Pittsfield Plaintiffs) to whom the material is
produced could challenge Defendant's decision not to
designate particular documents or information as Common
Litigation Material (Dkt. No. 53 at 5). If the parties are
unable to resolve their differences, within ten business
days, Defendant could move for a court order preventing
counsel and the Pittsfield Plaintiff (or Pittsfield
Plaintiffs) to whom the material was produced from disclosing
the material to any other Pittsfield Plaintiffs and
preventing any other Pittsfield Plaintiffs from using the
material in their cases. In the event Defendant seeks such
court intervention, counsel and the Pittsfield Plaintiffs
would be prohibited from treating the disputed material as
Common Litigation Material to be shared with or used by any
Pittsfield Plaintiffs other than those to whom it was
produced, absent a court order to that effect.[3]

II.
Legal Standard

Rule
26(b)(1) of the Federal Rules of Civil Procedure provides
that, “[u]nless otherwise limited by court order, the
scope of discovery is as follows: Parties may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case …. Information within this scope of
discovery need not be admissible in evidence to be
discoverable.” Fed.R.Civ.P. 26(b)(1). Pursuant to Rule
26(c)(1), “[t]he court may, for good cause, issue an
order to protect a party or [any] person [from whom discovery
is sought] from annoyance, embarrassment, oppression, or
undue burden or expense.” Fed.R.Civ.P. 26(c)(1). The
party or person seeking a protective order, including an
order limiting another party's right to disseminate
information obtained in discovery, has the burden of
demonstrating the existence of good cause. Green v.
Cosby, No. 14-cv-30211-MGM, 2015 WL 9594287, at *4-5 (D.
Mass. Dec. 31, 2015); Baker v. Liggett Grp., Inc.,
132 F.R.D. 123, 125 (D. Mass. 1990) (citing Anderson v.
Cryovac, Inc., 805 F.2d 1, 6-7 (1st Cir. 1986)).
“A finding of good cause must be based on a particular
factual demonstration of potential harm, not on conclusory
statements.” Baker, 132 F.R.D. at 125 (quoting
Anderson, 805 F.2d at 7).

III.
Analysis

Defendant
asserts that good cause exists for entry of the protective
order it seeks on two grounds. First, Defendant posits that
the order is necessary to ensure that the Pittsfield
Plaintiffs are bound by Fed.R.Civ.P. 26(b)(1)'s rule
limiting discovery to relevant matters. Id.
According to Defendant, some of the material that it will
produce in discovery is relevant in all of the Pittsfield
Cases. By way of example, Defendant refers to its policies
governing payment of overtime or prohibiting off-the-clock
work. Defendant proposes to designate such materials as
Common Litigation Material; because Common Litigation
Material would be discoverable in all of the Pittsfield Cases
individually, all of the Pittsfield Plaintiffs should be able
to review and utilize it in their individual
cases.[4] On the other hand, Defendant argues that
some of the material that it will produce is relevant in only
a single Pittsfield Case (or a subset of Pittsfield Cases),
and counsel and the Pittsfield Plaintiffs should not be able
to use that material in Pittsfield Cases other than the
Pittsfield Case (or Pittsfield Cases) in which it is
produced, absent a showing that the material would be
independently discoverable (i.e. relevant) in their cases.
Those are the documents and information that Defendant would
not designate as Common Litigation Material, and the
Pittsfield Plaintiffs could not treat them as such absent
Defendant's subsequent agreement or a court order as
described above.

Second,
Defendant argues that good cause exists for entry of the
order because some of the documents and information that it
will produce are confidential in nature to the particular
Pittsfield Plaintiff (or Pittsfield Plaintiffs) to whom
Defendant will produce them. Based on this rationale,
Defendant initially took the position that Common Litigation
Material would not include “any individual or
Plaintiff-specific information produced in any of the
Pittsfield Cases” (Dkt. No. 31-2 at 3).[5] Following the
hearing on Defendant's motion, however, each Pittsfield
Plaintiff filed a notice consenting to the sharing with the
other Pittsfield Plaintiffs of documents, data, and
information produced by Defendant “related to [his]
employment with Time Warner” (Dkt. No. 52). Defendant
interprets the Pittsfield Plaintiffs' consents to
encompass only those documents and information that fall
within the definition of “personnel records”
under Mass. Gen. Laws ch. 149, § 52C, and, based on
those consents, no longer seeks to limit the Pittsfield
Plaintiffs' ability to disseminate among themselves their
employment applications and resumes; performance evaluations;
disciplinary or corrective actions; and compensation
information, including time records and pay
records.[6] As to documents that “relate[ ] to
[a particular Plaintiff's] employment with Time
Warner” (in the words of the consents), but that do not
fall within the definition of personnel records under Mass.
Gen. Laws ch. 149, § 52C, Defendant argues that
Plaintiffs' consents are irrelevant because Plaintiffs
have no interest or control over them, and Defendant still
seeks the ability to limit the disclosure and use of such
documents to the Pittsfield Plaintiff (or Pittsfield
Plaintiffs) to whom Defendant produces them. According to
Defendant, these other documents and files would primarily
include any communications and emails among a particular
Pittsfield Plaintiff, management, or any other employee that
do not constitute employment applications, employee work
evaluations, disciplinary documentation, and promotion,
demotion, or termination information, and documents that
implicate the privacy interests of employees other than the
Pittsfield Plaintiffs (Dkt. No. 53 at 4).

The
court is not persuaded that Defendant has shown good cause
for entry of a protective order on either relevancy or
confidentiality grounds. “As a general matter,
relevancy must be broadly construed at the discovery stage
such that information is discoverable if there is any
possibility it might be relevant to the subject matter of the
action.” Cherkaoui v. City of Quincy, No.
14-cv-10571-LTS, 2015 WL 4504937, at *1 (July 23, 2015)
(quoting E.E.O.C. v. Electro-Term, Inc., 167 F.R.D.
344, 346 (D. Mass. 1996)). “[B]ecause discovery itself
is designed to help define and clarify the issues, the limits
set forth in Rule 26 must be construed broadly to encompass
any matter that bears on, or that reasonably could lead to
other matters that could bear on, any issue that is or may be
in the case.” Green, 2015 WL 9594287, at *2
(quoting In reNew England Compounding Pharmacy,
Inc. Products Liab. Litig., MDL No. 13-2419-FDS, 2013 WL
6058483, at *4 (D. Mass. Nov. 13, 2013)).

Here,
in order for the Pittsfield Plaintiffs to prove their claims
for unpaid overtime work against Defendant, each Pittsfield
Plaintiff will have to prove both that he incurred unpaid
overtime work and that Defendant “had actual or
constructive knowledge that he was working overtime.”
Vitali v. Reit Mgmt. & Research, LLC, 36 N.E.3d
64, 69 (Mass. App. Ct. 2015) (quoting Prime Commc'ns,
Inc., v. Sylvester, 615 N.E.2d 600, 601 (Mass. App. Ct.
1993)). “The knowledge inquiry requires an assessment
of what the employer knew or should have known, and is to be
made in view of the employer's ‘duty … to
inquire into the conditions prevailing in his
business.'” Id. (alteration in original)
(quoting Gulf King Shrimp Co. v. Wirtz, 407 F.2d
508, 512 (5th Cir. 1969)).

Defendant
takes the position that documents relating to one
employee's pay and work hours are irrelevant, as a matter
of law, to the defendant employer's actual or
constructive knowledge of off-the-clock work by any other
employee. This is inconsistent with the holding of the
Massachusetts Appeals Court in Vitali that an
employer's constructive knowledge can be based, at least
in part, on the observable behavior of other employees with
respect to off-the-clock work. Id. at 75. Because of
this commonsense proposition, the Vitali court
determined that the trial court erred in granting summary
judgement to the defendant-employer where the summary
judgment record supported the reasonable inference that,
“armed with at least constructive knowledge that
employees were undertaking lunch time work that should have
been credited toward overtime, the [defendant] company went
ahead and assumed in its favor that employees were not
performing any such work except where they separately
reported it through a process that [plaintiff] was never
trained in, or even told to use.” Id.
Defendant argues vehemently against this reading of
Vitali, citing to decisions from other jurisdictions
in Jones v. Z.O.E. Enters. of Jax, Inc., No.
3:11-cv-377-J-32MCR, 2012 WL 3065384, at *1 (M.D. Fla. July
27, 2012), Buckner v. United Parcel Serv., Inc., No.
5:09-CV-00411-BR, 2011 WL 6748522, at *1 (E.D. N.C. Dec. 22,
2011), and Glorioso v. Williams, 130 F.R.D. 664
(E.D. Wis. 1990), in which the courts denied the
plaintiff-employees' motions to compel the
defendant-employers to provide wage and time records
regarding other non-party employees. These cases are neither
controlling, nor persuasive. In contrast to the
Vitali decision, which cogently addresses the
potential relevance of evidence regarding other employees to
the issue of the employer's constructive knowledge, none
of the courts in the cases Defendant cites engage in any
analysis, let alone one taking into account the liberal
construction of relevancy that controls in the discovery
stage, before simply declaring the sought-after wage and hour
records not relevant. Jones, 2012 WL 3065384, at *2;
Buckner, 2011 WL 6748522, at *4; Glorioso,
130 F.R.D. at 664-65. Defendant also cites to the subsequent
decision of the Massachusetts Superior Court on remand in
Vitali, No. SUCV2012-00588-BLS1, 2016 WL 1425725, at
*7 (Mass. Super. Ct. Mar. 2, 2016), denying the
plaintiff-employee's motion for class certification.
Contrary to Defendant's argument, the trial court's
conclusion that the claims of other hourly workers employed
by the same defendant did not present common questions of law
and fact sufficient for class treatment is not the same as a
conclusion that what happened to those other workers was
entirely irrelevant to the employer's actual or
constructive knowledge regarding the plaintiff's alleged
overtime work (and, indeed, the latter conclusion would be in
conflict with the decision of the Massachusetts Appeals Court
remanding the case).

Moreover,
Defendant does not identify any harm cognizable under
Fed.R.Civ.P. 26(c) relating to its relevancy concerns that
its proposed protective order is necessary to prevent.
Defendant makes vague references in its pleadings to
“discovery abuse.” At the hearing on its motion
to dismiss, Defendant suggested that the “abuse and
harm” that would result from “unfettered access
… to all the documents across all the cases”
would be that a Pittsfield Plaintiff could utilize a document
produced to another Pittsfield Plaintiff during a deposition
“to try and elicit admissions about the company's
practice to establish … constructive knowledge”
(Dkt. No. 55 at 9). This is not an abuse of the discovery
process; this is a purpose of the discovery process.
Defendant suggests that this could be improper because a
Pittsfield Plaintiff could use documents that a deponent has
no knowledge about - because they were produced in another
Pittsfield case - to try to elicit the damaging admissions. A
Rule 26(c) protective order is not an appropriate vehicle to
address such a hypothetical concern. A deponent who has no
knowledge about a document and is unable to answer questions
relating to it can so respond during a deposition. And to the
extent that Defendant might ...

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